The New York State Department of Labor has adopted regulations clarifying employers’ rights and obligations when implementing policies that limit the discussion of wages in the workplace. Under New York Labor Law section 194(4), an employer may not prohibit employees from discussing wages, but may establish “reasonable workplace and workday limitations on the time, place and manner for inquiries about, discussion of, or the disclosure of wages.” The DOL’s new regulations provide guidance on the permissible scope of policies that limit wage discussions as well as the notice employers must provide to employees about such policies.
George Patterson is an Associate based in the New York office. His practice focuses on all aspects of employment law, including discrimination, harassment, wage and hour issues, and other employment-related litigation and counseling. He also represents clients on labor and executive compensation matters. Prior to joining Mintz Levin, George practiced as an associate with other large firms, handling large-scale employment and commercial litigation matters.
Since a Texas federal judge blocked the U.S. Department of Labor’s overtime rule from taking effect in November, human resource managers, payroll professionals and employment attorneys (including over here at Employment Matters) have been abuzz about the fact that, at least for now, employers do not need to make sweeping changes to their compensation practices to comply with the rule. What has been less discussed, however, is the impact on New York employers of the New York State Department of Labor’s amendments to New York’s Wage Orders, which become effective on Saturday, December 31, 2016, and which will, among other things, significantly increase the State’s minimum wage rate as well as its the minimum salary thresholds for individuals classified as exempt executives and administrative employees.
The NYSDOL had proposed these changes several months ago and the comment period ended back on December 3rd. But the final rule was issued just yesterday, unchanged from its proposed form. With the clock ticking, New York employers must and should pay immediate attention to these changes and should act quickly to fulfill their ongoing notice and posting obligations while adjusting compensation levels accordingly. We summarize the Wage Order amendments below.
In a previous post we discussed the Seventh Circuit’s decision in Hively v. Ivy Tech Community College, in which a three-judge panel concluded that Title VII did not protect an employee from discrimination based on her sexual orientation. The court recently granted the employee’s petition for en banc review and agreed to rehear argument in the case before all of the court’s judges.
The Hively decision was notable for the court’s struggle to follow precedent declining to extend Title VII to sexual orientation claims while acknowledging that district court cases and a recent EEOC ruling that rejected such precedent had actually demonstrated superior legal reasoning. Many observers believe it is only a matter of time until a federal appeals court extends Title VII’s protections to sexual orientation claims. We will be monitoring these developments and will keep you apprised of whether the Seventh Circuit takes the opportunity to become the first U.S. circuit court to do so.
An employer’s decision to rescind an African American applicant’s job offer after she refused to comply with a race-neutral grooming policy that prohibited her from wearing her hair in dreadlocks did not constitute race discrimination in violation of Title VII, ruled the 11th Circuit. Notably, the court declined to adopt the EEOC’s expansive view that Title VII’s protections extend to practices that are “historically, physiologically and culturally associated with … race” and held that “Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.”
In a carefully reasoned but ultimately restrained opinion the Seventh Circuit held that Title VII does not prohibit discrimination in employment on the basis of sexual orientation. While declining to become the first circuit court to extend Title VII to sexual orientation claims, the court acknowledged at length the persuasive force of a recent EEOC administrative decision and similar district court rulings noting the logical fallacy of enforcing Title VII’s protections against discrimination on the basis of gender nonconformity while permitting sexual orientation discrimination in the workplace to continue.
In an important victory for employers, the Supreme Court in Spokeo, Inc. v. Robins held that a plaintiff does not have Article III standing to sue in federal court under the Fair Credit Reporting Act (FCRA) and other federal statutes absent a sufficient allegation of the existence of a concrete injury. The Supreme Court was clear that alleging a bare procedural violation absent any concrete injury to the plaintiff was insufficient to move a case forward. While it remanded the case to determine whether the plaintiff sufficiently alleged a concrete injury, employers should welcome this decision as a potential end to costly FCRA (and other statutory) class actions based on trivial violations of procedural requirements that don’t harm anyone.
The Seventh Circuit recently became the first federal appellate court to say that employers can’t prevent class/collective actions through waivers in mandatory arbitration agreements, holding that such waivers interfere with employees’ rights to engage in concerted activity in violation of the National Labor Relations Act. The court’s holding in Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016), creates a circuit split on this issue and calls into question the effectiveness of such waivers for employers with employees working in states covered by the Seventh Circuit (Wisconsin, Illinois and Indiana).
The Fifth Circuit recently held that a third party witness who was fired after providing information in response to her employer’s investigation of a coworker’s harassment allegations had to demonstrate she had a “reasonable belief” that the conduct she reported violated Title VII in order to prove her retaliation claim.
My colleague Natalie Young, was quoted in a Turnarounds & Workouts article entitled, “Trump Wins Again: Debtor-Employers Allowed to Reject Expired CBAs”, in which she explains the bankruptcy court’s decision to allow Trump Entertainment to reject expired collective bargaining agreements. The article examines the factors that influenced the court’s ruling, and outlines the requirements necessary for a debtor-employer to successfully reject an expired CBA during bankruptcy.
My colleague Tyrone Thomas, was quoted in the Law360 article entitled, College Athlete Employee Claims a Dead End Post-Penn Suit, in which he analyzes the Indiana court’s decision to dismiss former University of Pennsylvania student-athletes’ wage-and-hour claims and the impact of this ruling on recent efforts to classify student-athletes as employees. The article outlines the nuances of the suit, and the latest developments in the continued struggle to reform the amateurism model of college athletics.